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Barwatch Bulletin from August 10, 2007

August 17, 2007
Late-Filed Recommendations to be Considered by the ABA House of Delegates

Several late-filed recommendations were submitted for consideration by the ABA House of Delegates.

Recommendation 10C, filed by the Bar Association of the District of Columbia, urges the ABA to "undertake a study of, and make recommendations concerning, appropriate means by which the appointment, retention, and replacement of United States Attorneys and career government attorneys, and the exercise of their professional judgment and discretion, may be insulated from improper partisan political considerations.

According to the sponsor, the ABA, "as the representative of our country's legal profession," should conduct a "professional, non-partisan review" of the issues involved in the firing of nine U.S. attorneys "to develop recommendations to safeguard against politicization of decision-making by United States attorneys or by [government] career lawyers."

The sponsor's report details circumstances surrounding the firings of the U.S. attorneys and described the "disturbing" attempt by Justice Department officials to "politicize" the hiring of staff attorneys. Two "highly respected" Senators, Arlen Specter and Patrick Leahy, engaged the Attorney General in "very critical and bipartisan questioning" regarding these events. The sponsor notes that Senator Leahy has been "particularly supportive of the ABA."

The sponsor suggests the ABA Board of Governors (BOG) could organize the Commission, though the sponsor demurs from endorsing a particular model. The BOG could establish a task force with representatives from ABA entities "whose jurisdiction and interest encompasses aspects of the study" such as the Sections of Litigation, Criminal Justice, Administrative Law, or Individual Rights & Responsibilities. Alternatively, BOG could ask one section to create a task force with a cross-section of views.

The sponsor proposes a few reforms that could be undertaken. One reform could be in the selection process for U.S. Attorney nominees for the respective judicial districts. The sponsor suggests appointing "a Commission in each district, comprised of respected lawyers and lay leaders, to submit several names of prospective nominees to the President for his consideration." Another possible reform "is a requirement that members of the House and Senate publicly disclose all contacts which they initiate with the United States attorney from their jurisdiction concerning any pending case or matter, or recommending any action to institute an investigation or prosecution." A third reform "would be the adoption of stronger sanctions to deter hiring practices which 'cross the line' against consideration of political affiliation in the hiring of career government attorneys.

The sponsor contends, "The importance to the profession and the public of averting the risk of politicization in the administration of justice, and of precluding partisan considerations in the exercise by government attorneys of their professional judgment and discretion, warrants action by the ABA to study this problem and to develop appropriate protective rules and legislation."

Absent from the sponsor's report is a discussion of how to distinguish between improper partisan influence of or action against a U.S. attorney vs. proper political or policy considerations in hiring and firing that, in our constitutional system, a unitary Executive might properly make. The report is also ambiguous in describing the process by which the ABA selects participants to the task force. While the BOG and ABA leadership may have discretion in determining the composition of the task force, the ultimate membership of the task force and the purview it falls under will be central to the ultimate outcome in light of the ambiguities discussed above.
Another late recommendation, submitted by the City Bar of New York, the Standing Committee on Law and National Security, the Section of Individual Rights & Responsibilities, the Center for Human Rights, the Task Force on Treatment of Enemy Combatants, and the New York State Bar Association, "urges Congress to enact legislation that would: (a) Supersede the Executive Order of July 20, 2007, which authorizes the Central Intelligence Agency to operate a program of detention and interrogation that is inconsistent with U.S. obligations under Common Article 3 of the 1949 Geneva Conventions; and (b) Ensure that whenever foreign persons are captured, detained, interned or otherwise held within the custody or under the physical control of the United States, or interrogated in any location by agents of the United States (including private contractors), they are treated in accordance with the minimum protections afforded by Common Article 3 and in a manner fully consistent with the standards of treatment and interrogation techniques contained in FM 2-22.3, the U.S. Army Field Manual on Intelligence Interrogation of September 2006."

ABA President Karen Mathis endorsed this recommendation. According to Mathis, "We [the U.S.] are part of the international community" and thus are obligated to abide by the international treaties the United States has adopted. Torture is "not appropriate."

It is a complex issue-the United States has not adopted Protocol One of the Geneva Conventions, for example.
More information on this report will be detailed in tomorrow's Barwatch Bulletin.

Karen Mathis Press Conference

ABA President Karen Mathis held a press conference on Friday morning. She focused on two issues in her initial remarks: FISA and Ledbetter v. Goodyear.

Mathis criticized recent revisions to the Foreign Intelligence Surveillance Act (FISA), charging Congress did not include "adequate checks and balances to prevent invasions of privacy." According to Mathis, "With today's technology, the government has almost limitless power to secretly probe the most private communications of Americans. This power is too great to be held in the hands of any one authority. Our nation's history underscores the importance of checks and balances to make sure no branch of government has unlimited power. History demonstrates time and again that when government agents have surreptitiously bypassed judges and decided on their own to tape phones and invade homes, abuses have occurred."

She urged Congress to fix the flaws in the recent revisions "to require appropriate judicial and congressional oversight whenever electronic surveillance involves U.S. citizens."

Regarding the recent U.S. Supreme Court decision in Ledbetter v. Goodyear, Mathis declared that the decision left a "fatal flaw" in the law, as "it imposes such short time limits that most workers lose their right to file a complaint before they even realize they're victims of discrimination." She urged Congress to repair the law by passing legislation "to clarify its intentions that there must be real and effective protection against discriminatory pay." According to Mathis, "The 1964 Civil Rights Act directly enabled many African Americans, women, and others to claim their rightful places in the workforce. The demands of justice and fair play are too great to be trumped by a law's technical failings." She announced that the ABA's Individual Rights & Responsibilities Section and its Commission on Women in the Profession have submitted a late-filed recommendation for the House of Delegate regarding this issue, which Mathis "strongly" supports.

This recommendation urges "legislation to clarify that the statute of limitations for claims of discrimination in pay runs from each injury -- that is, from each paycheck reflecting an improper disparity. The legislation should provide that in pay discrimination cases, each such paycheck counts as a separate unlawful employment practice under Title VII. This rule will ensure that discriminatory pay disparities will not be insulated from legal challenge, that employees need not file claims before they gain sufficient knowledge of the pay disparity, and that employers will have an incentive to discover and address discriminatory pay disparities rather than conceal them."

Concerning other matters:

-- Although the Supreme Court has affirmed the right of habeas corpus to detainees, legislation has stripped this right away. Mathis emphasized that due process was a "fundamental right" and urged that the right of habeas be restored to detainees.
--When asked about the ABA's relationship with the Bush Administration, Mathis contended it was both "honest" and "professional" despite occasional tension. She revealed that she had met with Attorney General Alberto Gonzales and had a productive meeting with him. Furthermore, the Association worked closely with DOJ on issues such as juvenile justice and delinquency prevention.
--Mathis contended that over the past year, the American public had moved closer to the Association's positions on detainees, torture, checks and balances, and signing statements.

War on Terror Panel
Friday morning featured a panel sponsored by the Standing Committee on Law and National Security entitled "GWOT vs. SAVE, A New Legal Framework? Is it a Global War on Terrorism or a Struggle Against Violent Extremism?" The panel considered the following questions: "What capabilities will the U.S. need over the long term to meet the challenge of international terrorism and global violence? What is the nature of the long-term threat and what is the legal framework for the struggle to defeat terrorism? Do we have the capabilities (policies, resources, institutions) needed to implement strategies? In what context is the use of military force the most effective tool or what other tools should be brought to bear? Does international law have to be reformed?"
Kenneth Wainstein, the Assistant Attorney General of the Department of Justice's National Security Division, described the two paradigms regarding terrorism: the war on terror paradigm and the law enforcement paradigm. He asserted that September 11th caused a shift in law enforcement from a "reactionary" position to one "merging with intelligence." This change has been generally accepted.

Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology and the former Associate Director and Chief Legislative Counsel for the ACLU, warned that the military model in dealing with terrorist groups has important implications for "the most fundamental rights" of civil liberties. He thinks that the government is "picking and choosing" aspects of both the law enforcement and the war on terror models and consistently not choosing the protective aspects. Nojeim then focused on the issue of wiretapping in light of the recent legislation. He charges that the administration's stance-that it has the authority to determine how to engage the enemy-is "not very friendly" for those who are suspected to be involved in terrorism. According to Nojeim, we are making rules that will last for lifetimes. He ended his remarks by quoting Justice O'Connor's opinion in the Hamdan case: "The state of war is not a blank check" for the president "when individual liberties are at stake."
Abraham D. Sofaer, Senior Fellow at the Hoover's Institution's Foreign Policy and National Security Affairs, contended that the debate over calling terrorism a war or criminal is fashionable. He charged that those who tried to fight Al Qaeda through criminal law were "kidding themselves" and the American public. Only an international armed conflict could have stopped Al Qaeda. The Bush administration, however, has used the legal rationale of "inherent executive power" to justify expanding the executive's power. This can be seen in the detention of Al Qaeda suspects, in interrogation tactics, in the establishment of military commissions, and wiretapping. Sofaer called the argument that rules for interrogations and torture did not apply overseas an "astonishing assertion." Sofaer did not contend that these powers were wrong; rather, he asserted that the Administration should have gone through Congress for these powers, especially since Congress has consistently protected the Administration's policies "excessively." This can be seen in the Military Commissions Act and the recent FISA bill. During the question and answer period, Sofaer declared, "The disdain for the use of force is an illness" in the international community.

Elise Groulx-Diggs, the president of the International Criminal Defence Lawyers and the founding president of the International Criminal Bar, affirmed, "I believe strongly in the ideas of multilateralism and the UN system." She endorsed the International Criminal Court and other international courts as effective ways to enforce international criminal law. She defined terrorism as the systematic use of violence against civilians. While 9/11 was a horrific act of terrorism, the international community is "equally horrified" by other acts of terrorism, such as terrorist acts in the Congo, Uganda, Darfur, Rwanda, Yugoslavia, Iraq, and Chechnya. Groulx-Diggs specified three methods of addressing these various forms or terrorism: 1) Traditional war; 2) Traditional criminal justice; and 3) New forms of war, with a variety of "questionable tactics," such as torture and detention.

She maintained that the first two methods are encompassed in the ICC system. The U.S. version of the Global War on Terror is "outside of the law or illegal." Speaking as an "internationalist," Groulx-Diggs charged that U.S. policy has raised "political and ethical concerns."

David Rivkin of Baker and Hostetler LLP explained that the U.S. is not in a war against terror but rather, "We are at war against specific entities." According to Rivkin, 9/11 clearly "ushered in an armed conflict." If this is not a war, then the definition of war is no longer discernable. Rivkin maintains, "It's not an either/or question" dealing with war and law enforcement paradigms. The problem lies with the movement supporting the exclusive use of the law enforcement paradigm. Prior to 9/11, both the Clinton and the Bush administrations utilized the law enforcement paradigm and it "failed to stop these types of attacks." According to Rivkin, the insistence that the Geneva Conventions are "the alpha and omega" of international law is absolutely incorrect.

McGeorge School of Law Dean Elizabeth Parker contended that the U.S. needed a new paradigm based upon education. We do need a more robust surveillance capacity, but we need to educate and discuss the issues more fully if we are going to be making changes in intelligence methods. Parker warned, "We need to make sure that the public has confidence" in the oversight and use of these new intelligence methods. If law enforcement and intelligence is not informed, they will overreact. She asserted, "We are over-reacting to 3,000 deaths." If we had wanted to prevent 9/11, "We needed to have a full range of different policy choices." During the question and answer portion of the program, Parker explained that Islamic extremism has a political component and that we need to understand what is fueling this phenomenon. She called the Iraq invasion a "folly" and that it has created the conditions for more terrorism. Parker contended, "We've overreacted out of naïveté and fear.